Fernando DAVIS, Plaintiff, v. Robert J. PICKELL, James Gage, Officer Baylock, Officer Macey, Officer Buchanan, and Officer Cocking, Defendants, 939 F. Supp. 2d 771

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT DAVID M. LAWSON, District Judge. On February 6, 2013, Magistrate Judge R. Steven Whalen filed a report under 28 U.S.C. § 636(b)(1)(

B) recommending that the Court grant in part and deny in part the defendants’ motion for

summary judgment in this jail beating case. Four defendants filed timely objections, and the plaintiff has filed a response. The matter is now before the Court for de novo review. After thoroughly reviewing the evidence, including the videotape of the event that occurred inside the Genesee County jail on the night in question, the Court is in substantial agreement with the magistrate judge, and therefore will adopt his report and recommendation. I. The facts of the case are well summarized by Judge Whalen and need not be repeated here.

It is enough to state that sometime late in the night of March 24, 2009, plaintiff Fernando Davis was arrested for drunk driving, transported by the state police to the Genesee County Jail, and booked into a holding cell at the jail. Davis was removed from the multi-prisoner cell and taken to a single-inmate “safety cell.” He alleges that during the transfer, Genesee County deputy sheriffs Baylock, Macey, Buchanan, and Cocking subjected him to excessive force in the course of removing his jacket and shoes. The videotape provides substance to those allegations.

In his report, Judge Whalen concluded that (1) based on the video evidence in the record, Davis has demonstrated that a genuine dispute of material fact exists as to whether the deputies used excessive force in tackling and subduing him while in the single-inmate “safety cell”; (2) based on the same evidence, the plaintiff has established viable claims for state law assault and battery and intentional infliction of emotional distress; (3) the claims against defendants Pickell and Gage must be dismissed because the -plaintiff has not established that they had any personal involvement in the conduct at issue; (4) the claims against the defendants in their official capacities must be dismissed because the plaintiff has failed to establish any pattern, practice, custom, or policy as would be required to show municipal liability; (5) the claim for conspiracy is barred by the “intracorporate conspiracy” doctrine; and (6) the state law assault and battery claims against defendants Buchanan and Cocking, who were added to the case later in place of “John Doe” defendants, must be dismissed because they were filed out of time.

The defendants filed specific objections to the magistrate judge’s report and recommendation, contending that (1) the magistrate judge erred in recommending that the excessive force claim should not be dismissed because he ignored evidence of the plaintiffs “assaultive conduct” and did not afford the proper deference to the judgment of the deputies on the scene; and (2) the defendants are entitled to governmental immunity on the state law intentional tort claims, even if plaintiff could show that he is entitled to proceed on the constitutional claims of excessive force.

According to the defendants, “there is only one version of the facts — that of the deputies, which is supported by the jail video footage.” The plaintiff did not file objections to the report, and the time for doing so has passed. II. Objections to a report and recommendation are reviewed de novo. “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The parties’ failure to file objections to the report and recommendation waives any further right to appeal. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir.2006); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Likewise, the failure to object to the magistrate judge’s report releases the Court from its duty to review independently the motion. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v.

Currie, 50 F.3d 373, 380 (6th Cir.1995). “ ‘[Objections disputing] the correctness of the magistrate’s recommendation but failing] to specify the findings ... believed [to be] in error’ are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir.2004).

As mentioned, the plaintiff has not objected to the magistrate judge’s report and recommendation, and the Court will adopt without further discussion the part of the recommendation to dismiss (1) the assault and battery claim against defendants Buchanan and Cocking, (2) the conspiracy claims, (3) all claims against defendants Pickell and Gage, and (4) all official capacity claims. The case is before the Court on the defendants’ motion for

summary judgment.

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Sixth Circuit has explained: Both claimants and parties defending against a claim may move for

summary judgment “with or without supporting affidavits.” Fed.R.Civ.P. 56(a), (b). Such a motion presumes the absence of a genuine issue of material fact for trial. The court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir.2009).

The plaintiffs federal claims are based on 42 U.S.C. § 1983. To state a claim under that statute, “a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir.2009) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006)).

The plaintiff must establish the liability of each individual defendant by that person’s own conduct. “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The defendants argue that the facts are uncontested, the evidence does not demonstrate a constitutional violation, and the defendants are entitled to qualified immunity. Not so.

The videotape tends to support the plaintiffs version of the events, or at least it can be viewed that way. And on

summary judgment, especially when qualified immunity is raised, “[the Court] must review the evidence in the light most favorable to the Plaintiff, taking all inferences in his favor.” McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir.2010) (citations, quotation marks, and alterations omitted). As the Sixth Circuit has explained, “[qualified immunity is a question of law, but ‘where the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.’ ” Ibid. A defendant asserting qualified immunity on

summary judgment “ ‘should be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the case.’ ” Booher v. N. Ky. Univ. Bd. of Regents, 163 F.3d 395, 396 (6th Cir.1998) (quoting Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir.1998)). A. Excessive Force Defendants Baylock, Macey, Buchanan, and Cocking argue that they are entitled to qualified immunity against the plaintiffs claims of excessive force.

Qualified immunity is an affirmative defense that protects government actors performing discretionary functions from liability for civil damages when their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

The purpose of this defense is to strike a balance that “accommodates the tension between permitting litigants to recover damages, which is often the only realistic avenue for vindication of constitutional guarantees, and the social costs of such suits, including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004) (quotation marks and citation omitted).

The defense is intended to protect state actors who must operate along the “hazy border” that divides acceptable from unreasonable conduct. Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Russo v.

City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992)); see also Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (describing the Court’s inquiry as “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”); cf. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (noting that the right must be sufficiently particularized to allow a reasonable official to understand that he is violating the right).

However, the Supreme Court has clarified that neither a decision of the Court nor an extreme level of factual specificity is necessary in every instance to give fair warning. See United States v. Lanier, 520 U.S. 259, 268, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); see also Gould v. Symons, 275 F.Supp.2d 843, 848 (E.D.Mich.2003). The Supreme Court has observed that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v.

Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “The fact that the law may have been unclear, or even hotly disputed, at the margins does not afford state actors immunity from suit where their actions violate the heartland of the constitutional guarantee, as that guarantee was understood at the time of the violation.” Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir.1997). Although the law of qualified immunity is well established as it applies to this case, the substantive standard of conduct that must inform the Court’s consideration of the defense is less so. In Aldini v.

Johnson, 609 F.3d 858 (6th Cir.2010), the Sixth Circuit clarified the standard that applies to excessive force claims brought by individuals who, like the plaintiff, are arrested and turned over to jail authorities for booking, but who have not yet appeared before a judge for a probable cause hearing. An excessive force claim that arises in the context of an arrest or investigative stop of a free citizen is analyzed under the Fourth Amendment’s “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

A claim brought by a person who has been convicted of a crime and is serving a jail or prison sentence is governed by the Eighth Amendment proscription against cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 318-322, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Where neither the Fourth Amendment nor the Eighth Amendment applies, as in the case of a pretrial detainee, the Fourteenth Amendment applies. In Aldini, the Sixth Circuit held that during the time an individual is in custody between his arrest and his appearance before a judge, the Fourth Amendment applies.

The Fourth Amendment standard is objective, and it is applied without reference to the officer’s subjective motivations. Graham, 490 U.S. at 394-95, 109 S.Ct. 1865. The “ ‘proper application’ of the reasonableness inquiry ‘requires careful attention to the facts and circumstances of each particular case ....’” St. John v. Hickey, 411 F.3d 762, 771 (6th Cir.2005) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). The standard “contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Burchett v.

Kiefer, 310 F.3d 937, 944 (6th Cir.2002). A court must recognize that “officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham at 397, 109 S.Ct. 1865. However, the incident that provoked the plaintiffs claims occurred more than a year before Aldini was decided.

The defendants argue that at that time, it was not clearly established that the Fourth Amendment governed excessive force claims brought by pretrial detainees who have not appeared before a judge following arrest, and therefore the Fourteenth Amendment due process standard should apply to their qualified immunity argument. “A substantially higher hurdle must be surpassed to make a showing of excessive force under . the Fourteenth Amendment than under the “objective reasonableness” test of Graham, in which excessive force can be found if the officer’s actions, in light of the totality of the circumstances, were not objectively reasonable.” Darrah v.

City of Oak Park, 255 F.3d 301, 305-306 (6th Cir.2001). To rise to the level of a substantive due process violation, the officers’ conduct must “shock the conscience.” Id.; County of Sacramento v. Lewis, 523 U.S. 833, 846-847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

Although the Fourteenth Amendment due process standard may be more demanding than the Fourth Amendment objective reasonableness standard, it does not give jail officials free rein to mete out physical punishment at will. “It is clear ... that the Due Process Clause protects a pretrial detainee from, the use of excessive force that amounts to punishment.” Graham, 490 U.S. at 395, n. 10, 109 S.Ct. 1865.

Moreover, “public servants’ reflexive actions” will “ ‘shock the conscience’ ” when “they involve[ ] force employed ‘maliciously and sadistically for the very purpose of causing harm’ rather than ‘in a good faith effort to maintain or restore discipline.’” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.2000) (quoting Lewis, 523 U.S. at 852-53, 118 S.Ct. 1708).

The Court need not decide at this stage whether the Fourth Amendment or the Fourteenth Amendment governs the plaintiffs claims, because on the record as it stands, the plaintiff has presented sufficient evidence to defeat the defendants’ asserted qualified immunity defense under either standard. It shocks the conscience to beat senseless an unresisting prisoner in order to remove his shoes and jacket. And if the facts viewed in the light most favorable to the plaintiff make out a due process claim, then the plaintiff necessarily has shown a Fourth Amendment violation as well. Aldini, 609 F.3d at 867.

Although the parties dispute many factual details of the events that occurred at the jail, each offered as an exhibit video evidence that presents a comprehensive record of the entire incident, despite the low quality of the images. A video recording of an incident such as this is important evidence that sometimes can be dispositive of a fact dispute. The Supreme Court explained in Scott v.

Harris that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Instead, the Court should “view[ ] the facts in the light depicted by the videotape.” Id. at 381, 127 S.Ct. 1769; see also Marvin v. City of Taylor, 509 F.3d 234, 239 (6th Cir.2007). In some cases, the Sixth Circuit has determined that the existence of a recording of the event makes “the underlying facts of the case ... undisputed.” Dunn v. Matatall, 549 F.3d 348, 350 (6th Cir.2008). At the

summary judgment stage of an excessive force claim, once the Court has “determined the relevant set of facts and drawn all inferences in favor of the non-moving party to the extent supported by the record ... the reasonableness of [the defendant’s] actions ... is a pure question of law.” Id. at 353 (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (emphasis omitted)). The magistrate judge noted in his report that “[a]t oral argument on [the motion for

summary judgment], plaintiffs counsel agreed that the DVD constitutes the only evidence that would show a legitimate issue of fact as to the § 1983 and assault and battery claims.” In fact, the video contradicts the accounts of both the plaintiff and the defendants, but the Court finds that a jury reasonably could conclude upon viewing it that the deputies did engage in conscience-shocking conduct and committed an assault and battery on the plaintiff. As the magistrate judge observed, most of the tape shows the plaintiff simply-sitting, standing, or walking through various parts of the jail.

Because the video has no sound, it is impossible to determine what he said during the times when he appears to speak. Contrary to the defendants’ account, the footage inside the holding cell area does not reveal any obvious or dramatic “agitated” behavior by the defendant. Although he appears to speak to other inmates, he spends some of his time just sitting on the bench, and most of the occupants of the cell appear to remain asleep or to ignore his presence. It also is not clear from the video that the plaintiff refused to cooperate with deputies when taken out of the holding cell or while walking.

Davis does pause and apparently speak to one of the deputies for about four seconds during the walk to the safety cell, but there is no physical contact between plaintiff and the deputies before, the incident that happens in the cell. The video appears to cover the entire transit from the holding cell to the safety cell, and there is no point at which the deputies pepper spray, tackle, or otherwise physically handle Davis while en route. The video records the moments before, during, and after the struggle in the cell, both from a hallway camera and a ceiling camera inside the cell.

The most salient events occur during an approximately three-and-a-half minute time span between timestamps 51:42 and 54:11 in the video.

The magistrate judge, after reviewing the entire video, found that the acts depicted before, during, and after the struggle in the cell give rise to a genuine dispute of material fact as to whether the officers applied force “maliciously and sadistically” in order to cause harm, and if their actions therefore “shock the conscience.” The defendants object to the magistrate judge’s factual findings regarding that portion of the video, contending that “[the hallway camera angle] is not discussed in the Magistrate Judge’s Report and Recommendation,” and that in particular the magistrate judge “fail[ed] to take into consideration Plaintiffs assaultive conduct.” According to the defendants, the magistrate judge “ignored” the

section of the tape that “shows Plaintiffs shoe flying into the hallway prior to the deputies rushing into the cell.” The defendants further stress deputy Cocking’s testimony about the “flying” shoe, in particular his assertion that the shoe “hit him”: Q. Where did it hit you? A. I think in the shin. Q. Hard? A. Yeah, it was pretty hard, it was an aggressive action definitely. Def.’s Mot. for Summ. J., Ex. 4, Cocking dep. at 16. The video record is not so dramatic as the defendants represent.

The shoe in question does appear low in the frame, moving on or very close to the floor, just before the deputies rush the cell. However, it does not appear to be “flying,” and it is not at all apparent from the video that it was thrown or kicked with any substantial force, or that it struck anything. The legs of the deputies standing outside the door obscure the “flight path” of the shoe, and a jury reasonably could find that the tape shows the shoe being flipped or dropped, or it could conclude that it supports the testimony of the defendants that the plaintiff threw or kicked it.

The in-cell camera is likewise ambiguous, because it shows the plaintiff making some movement with his leg, but not one that is especially dramatic or apparently forceful. The in-cell video reasonably could be interpreted to show either a “flip” or “drop” of the shoe just as well as a “kick.” Moreover, the in-cell camera contradicts the defendants’ assertions that the plaintiff approached the cell door in an aggressive manner.

As the magistrate judge found, the tape does not depict the plaintiff with his fists clearly “balled up,” and in fact it does show his right hand open and flat, as the plaintiff raises it and places it on the wall next to him, apparently to balance himself while he removes his shoe. Nothing about the plaintiffs demeanor or approach to the door compels the conclusion that he was acting “aggressively” in the moments before deputies rush the cell and. tackle him. A jury might conclude that the tape supports the defendants’ version of events; but it also might not.

Because there is a genuine dispute of material fact regarding the plaintiffs demeanor and the motive of the deputies in using force against him, the Court cannot find that the defendants are entitled, to judgment as a matter of law. The defendants’ motion for

summary judgment on the excessive force claims therefore must be denied. The defendants object that the magistrate judge did not afford the proper “deference” to the judgment of officers on the scene in evaluating the claim of qualified immunity. They cite Caldwell v. Moore, 968 F.2d 595 (6th Cir.1992), for the proposition that [w]hen an order is given to an inmate there are only so many choices available to the correctional officer.

If it is an order that requires action by the institution, and the inmate cannot be persuaded to obey the order, some means must be used to compel compliance, such as a chemical agent or physical force. Caldwell, 968 F.2d at 602 (emphasis added). This argument might have some persuasive force, if not for the fact that the tape — corroborated by the deputies’ own testimony — clearly shows that at the time the deputies charged the cell, the plaintiff was complying with their order to remove his shoes.

Deputy Cocking himself testified that the plaintiff removed his first shoe just prior to the rush, so the. defendants cannot justify their acts as necessary to gain his compliance. The defendants further argue that in order for the Court to deny their defense of qualified immunity, it must find that “every reasonable official would have understood that what he is doing violates [the plaintiffs constitutional right]. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012).

Although there may be room for reasonable debate over whether the deputies were reacting to “assaultive conduct,” there can be no debate on the conclusion that if they were not, and if instead. they employed force “maliciously and sadistically ... rather than in a good faith effort to maintain or restore discipline,” then their actions violated the plaintiffs clearly established due process right to be free from the unconstitutional use of excessive force during his jail stay.

If, as the plaintiff claims and the video record suggests, the deputies employed force not to quell “disobedience” but in retaliation for “disrespect,” then their conduct violated a clearly established constitutional right that any reasonable official would recognize. Because the record presented to the Court does not establish that the deputies acted in response to a legitimate need to restore order or secure compliance with their orders, they are not entitled to the shield ’ of qualified immunity against the claim that they used excessive force at this stage of the case. B.

Assault and Battery “An assault is defined as any intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact.” Espinoza v. Thomas, 189 Mich.App. 110, 472 N.W.2d 16, 21 (1991) (citing Tinkler v. Richter, 295 Mich. 396, 295 N.W. 201 (1940)). To establish a viable claim for battery, the plaintiff must demonstrate a “willful and harmful or offensive touching of another person which results from

an act intended to cause such a contact.” Id. Because a jury reasonably could conclude that the use of pepper spray and physical force to subdue a compliant prisoner and remove his clothing was excessive under the Fourteenth Amendment due process standard, there is no question that' when the defendants tackled the plaintiff, they “offered” to employ unlawful force against him at the time of their charge toward him into the cell, and they committed a “willful and harmful ... touching” in the ensuing struggle.

The defendants object that they are entitled to governmental immunity on all of the plaintiffs state law intentional tort claims under the standard announced in Odom v. Wayne County, 482 Mich. 459, 760 N.W.2d 217 (2008). As the Odom court explained, If the plaintiff pleaded an intentional tort, [then the Court must] determine whether the defendant established that he is entitled to individual governmental immunity ... by showing the following: (

a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority, (

b) the acts were undertaken in good faith, or were not undertaken with malice, and (

c) the acts were discretionary, as opposed to ministerial. Odom, 482 Mich, at 480, 760 N.W.2d at 228. Because, as noted above, the jury reasonably could conclude that the defendants acted “maliciously” in using force and not for the legitimate purpose of compelling the plaintiff to obey their commands or to repel an “assault,” the defendants necessarily have not established that they acted in good faith and without malice. The defendants therefore are not entitled to governmental immunity on any of the state law intentional tort claims. C.

Intentional Infliction of Emotional Distress To make out a claim for intentional infliction of emotional distress, the “plaintiff must prove the following elements: ‘(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.’” Hayley v. Allstate Ins. Co., 262 Mich.App. 571, 577, 686 N.W.2d 273, 276 (2004) (quoting Graham v.

Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713, 716 (1999)). “Liability for [the intentional infliction of emotional distress] has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Haverbush v. Powelson, 217 Mich.App. 228, 234, 551 N.W.2d 206, 209 (1996). “Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Graham, 237 Mich.App. at 674, 604 N.W.2d at 716.

The magistrate judge cogently summarized the record as to this claim: As discussed above, there is a question of fact as to whether Defendants Bay-lock, Macey, Buchanan and Cocking violated Plaintiffs constitutional rights by using excessive force. Accordingly, there are sufficient facts for a jury to find that Sheriffs Deputies administered a severe and unprovoked beating to an intoxicated prisoner. This could be fairly characterized as outrageous behavior.

Summary judgment should be denied as to the IIED count. Rep. & Rec. [dkt. # 51] at 16. The Court agrees. Moreover, the defendants are not entitled to governmental immunity on this state law claim for the reasons discussed above in reference to the claim for assault and battery. III. The plaintiff has presented a record from which a jury reasonably could conclude that defendants Baylock, Macey, Buchanan, and Cocking used excessive force against him, in violation of the Due Process Clause of the Fourteenth Amendment.

He also has presented sufficient evidence to carry forward his claims of assault and battery and intentional infliction of emotional distress, with the exception of the claims for assault and battery against defendants Buchanan and Cocking, which are time barred and must be dismissed. The plaintiff has not objected to the magistrate judge’s recommendation to dismiss the other claims. Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt. # 51] is ADOPTED, and the defendants’ objections [dkt. # 52] are OVERRULED. It is further ORDERED that the defendants’ motion for

summary judgment [dkt. # 39] is GRANTED IN PART and DENIED IN PART. It is further ORDERED that all claims against defendants Robert J. Pickell and James Gage are DISMISSED WITH PREJUDICE. It is further ORDERED that all claims against the defendants in, their official capacities are DISMISSED WITH PREJUDICE. It is further ORDERED that the claim for conspiracy is DISMISSED WITH PREJUDICE. It is further ORDERED that the claims for assault and battery against defendants Buchanan and Cocking ONLY are DISMISSED WITH PREJUDICE. It is further ORDERED that the motion is DENIED in all other respects.

It is further ORDERED that the order referring pretrial matters to the magistrate judge [dkt. # 5] is VACATED. It is further ORDERED that counsel for the parties appear before the Court for a status conference to discuss further case management deadlines on April 16, 2013 at 4:30 p.m. REPORT AND RECOMMENDATION R. STEVEN WHALEN, United States Magistrate Judge. On March 24, 2011, Plaintiff Fernando Davis and his wife, Shaun Davis, filed a pro se civil complaint bringing claims under 42 U.S.C. § 1983, as well as various state statutes.

Plaintiff eventually retained counsel, who was granted leave to file an amended complaint. On February 7, 2012, counsel filed a First Amended Complaint that withdrew Shaun Davis as a plaintiff, and added Genesee County Sheriffs Deputies Buchanan and Cocking, who were originally identified as “John Doe” defendants [Doc. # 21]. Before the Court is Defendants’ Motion for

Summary Judgment [Doc. # 39], which has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be GRANTED IN PART AND DENIED IN PART. I. FACTS This case stems from the Plaintiffs arrest for operating a vehicle under the influence of liquor (“OUIL”) on or about March 24, 2009. In the early morning hours of March 25, 2009, State Troopers conveyed the Plaintiff to the Genesee County Jail.

Plaintiff claims that at the jail, Defendants Baylock, Macey, Buchanan and Cocking subjected him to excessive force during the booking and post-booking procedures. First Amended Complaint [Doc. # 21], ¶ ¶ 13-17. Plaintiff alleges a constitutional excessive force claim and state law claims of assault and battery, conspiracy to violate his civil rights, and intentional infliction of emotional distress against Defendants Baylock, Macey, Buchanan and Cocking. As to Defendants Pickell and Gage, Plaintiff alleges vicarious liability based on failure to train.

Plaintiff also brings official capacity claims against all Defendants. At his deposition, the Plaintiff stated that on the night in question, he was arrested for OUIL, and that a blood draw revealed a blood alcohol content (“BAC”) of O. 19, more than twice the legal limit. Plaintiff’s Deposition, Exhibit 1 to Defendant’s Motion [Doc. # 39], at 49-50. He was taken to the Genesee County Jail, and turned over to Sheriffs Deputies for booking.

Plaintiff alleges in his First Amended Complaint that Defendants Baylock, Macey, Buchanan and Cocking “used excessive fore in their handling of Plaintiff ... injuring him thereby and causing him to drop [h]is wallet and other personal items, identifications and funds.” Amended Complaint, ¶ 13. He further alleged that when he “attempted to retrieve the fallen items and/or gain his composure; the Defendants continued to use more’ excessive force rendering Plaintiff ... unconscious.” Id. ¶ 14.

At his deposition, however, Plaintiff testified that the allegations about dropping and retrieving his wallet were not true (having been mistakenly placed in the complaint), but that he was in fact beaten unconscious. Plaintiff’s Deposition, 82-83, 86-87. The Defendants provided the following account of the events surrounding Plaintiffs processing and detention in the Gene-see County Jail. Deputies Baylock and Macey initially processed the Plaintiff, and placed him in a holding cell with approximately. 20 other arrestees. Baylock Deposition, Defendants’ Exhibit 2, 11-12.

Baylock claims to have observed the Plaintiff pacing back and forth and engaging in “verbal spats” with other inmates. Bay-lock conceded that he could not hear any conversation inside the holding cell, but observed the Plaintiff pacing and becoming agitated. Id. 12-13. In any event, Defendant Buchanan decided to remove the Plaintiff from the holding cell and place him is a .single-inmate “safety cell.” Buchanan Deposition, Defendants’ Exhibit 3, 15-17..

Buchanan testified that she and the other Deputies asked Plaintiff to step out of the holding cell, but that he was not compliant until he was ordered three times to step out. Id. 16, 18. Buchanan claims that the Plaintiff walked slowly and continued to show agitated behavior, although she concedes that no physical force was used at that time. Id., 19-20. Buchanan testified that when Plaintiff was in the safety cell, he was asked to remove his shoes, which is standard safety procedure. However, she says, Plaintiff refused to do so, and instead “glared” and walked toward the cell’ door. Id., 21-22.

Deputy Cocking, who was also present, testified that Plaintiff “balled up his fists” as he walked toward the door. Cocking Deposition, Defendants’ Exhibit 4, 14-15. Cocking testified that Plaintiff pushed one of his shoes part-way off with his other foot and kicked it toward Buchanan. Id. Cocking testified that at that point, he and other Deputies- pushed Plaintiff back into the cell and took him to the ground. Id., 17-19. The struggle continued until Buchanan administered OC spray. Buchanan Deposition, 25-26. Later, Plaintiff was taken out of the cell for a shower and change of clothing, and was seen by a nurse.

Id., 26-28. The Plaintiff testified at his deposition that he was taken to the safety cell with his hand painfully behind his back, and that he was sprayed with mace and slammed to the ground in the hallway. Plaintiff’s Deposition, 95, 99-100. He was taken somewhere else and beaten. Id. 100-101. When he came to in the cell, he was bleeding. Id. 102. Obviously, Plaintiff has provided varying accounts of what happened, all of which conflict with the Defendants’ version, and his deposition testimony lacks clarity. Perhaps having a 0.09 BAC has something to do with his recollection of events.

In any event, both Defendants and Plaintiff have submitted a DVD that chronicles the sequence of events on March 25, 2009. See Defendants’ Exhibit 6 and Plaintiffs Exhibit 1. The DVD is divided into 17 different segments, each depicting the action as recorded on a specific camera during a specific time frame. There is no sound. Because the cameras are placed in different areas of the jail, and show different angles, some of the recorded segments may show what is occurring at the same time in different locations or from different visual perspectives.

For example, camera # 1 shows the hallway outside the safety cell, and camera # 10 shows the inside of the safety cell. Taken together, the 17 segments are chronological, from Plaintiffs arrival at the booking area to the physical encounter between the Defendants and the Plaintiff, to the Plaintiffs return to the safety cell after seeing the' nurse. At oral -argument on this motion, Plaintiffs counsel agreed that the DVD constitutes the only evidence that would show a legitimate issue of fact as to the § 1983 and assault and battery claims. The following is a

summary of each relevant DVD segment: Tape [05] Plaintiff is brought into the booking area. At 36:19, a deputy pats him down, and takes his belt. Plaintiff removes his shoes and socks. The deputy returns them, and Plaintiff puts them back on. He is then escorted out of the area with another prisoner. Throughout, Plaintiff appears cooperative and responsive to orders. Tape concludes at 43:10. Tape [08] At 43:07 to 44:34, Plaintiff is taken through the lobby/booking area. He still appears cooperative. Tape [07] Same as Tape [08], but from a different angle, specifically looking out from behind the glassed in area.

Tape [09] Again the lobby/booking area. Plaintiff leaves the area at 44:47. Tape [OJp] This is a holding area with a large number of prisoners; at least one is seated, many appear to be sleeping on the floor. The Plaintiff, wearing tennis shoes and a sweatshirt, enters at 49:04. He stands/walks for a short time, appears to possibly be speaking to other prisoners. Most of the other prisoners remain sleeping. A man is seated at a small bench, looks around, but otherwise remains seated. The Plaintiff sits down next to him, does not appear particularly agitated or aggressive.

At 51:20, deputies enter and appear to speak to the Plaintiff, who gets up and accompanies them out of the cell. Tape [09] Again, the lobby/booking area. The Plaintiff and the deputies enter at 46:37. Plaintiff stops momentarily and appears to be taking to the deputies. He is not in restraints, and there is no physical contact between him and the deputies. He generally appears non-aggressive and cooperative, and leaves the area with the deputies at 47:24. Tape [01] This is a hallway outside of the one-person safety cell. At 51:42, the Plaintiff enters the cell in the company of six deputies.

Two deputies, including Deputy Buchanan, leave the cell. At 53:15, a jacket is thrown out of the door into the hallway. Tape [10] This is the inside of the safety cell. There is what appears to be a metal cot built into the far wall. The Plaintiff enters the cell at 51:43. He stands by the cot (opposite the door), and appears to gesture. He then walks toward the door. As he approaches the door, the Deputies enter en masse and grab the Plaintiff, taking him to the ground.

During the scuffle that ensues, it is difficult to see the Plaintiff since the Deputies are on top of him, but the Deputies appear to be engaged in an aggressive struggle. Plaintiffs jacket is removed, and at 52:47, one of the Deputies appears to be either removing the Plaintiffs jacket (Plaintiff still cannot be seen) or punching him. At 53:15, it appears that the Plaintiff is pepper-sprayed. The Deputies exit the cell at 53:20, leaving the Plaintiff face-down on the floor. At 53:11, the Plaintiff gets up slowly. He appears to be in a great deal of discomfort, staggering about the cell and rubbing his eyes.

Approximately 50 minutes later, at 141:04, two Deputies enter the cell and escort the Plaintiff out. At this time, there appears to be blood in the toilet. Tape [01] At 1:40, the Deputies are bringing the Plaintiff out of the cell into the hallway. Tape [IS] This tape is designated “Property Room.” At 1:59, the Deputies are bringing the Plaintiff down the hallway, toward the camera. The Plaintiff enters what appears to be the nurses’ station at 2:00, wearing different clothes. Tape, [09] Again, the booking area. Plaintiff enters at 1:39, with a cloth over his face.

Tape [IS] Plaintiff enters the nurses’ station at 2:00, and leaves at 2:03. Tape [01] Plaintiff is taken back to the single-prisoner cell at 2:04. Tape [10] Plaintiff enters the cell at 2:04. It appears that the cell and the toilet have been cleaned. II. STANDARD OF REVIEW

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to' any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for

summary judgment, the non-moving party must show sufficient evidence to create a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir.1990). Drawing all reasonable inferences in favor of the non-moving party, the Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of

summary judgment is appropriate “against á party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact, and

summary judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir.2000). III. DISCUSSION A. Excessive Force ■ The Defendants argue as follows regarding the excessive force and assault and battery claims: “Plaintiffs claims of excessive force and assault and battery cannot be sustained on the facts. For Plaintiffs own safety, as well as the safety of the officers, Plaintiffs shoes and jacket had to be removed when he was placed in the safety cell.

At the time that the force was used, Plaintiff was actively resisting officers, refusing to follow verbal commands, had approached the deputies with an aggressive posture and actually assaulted a deputy by kicking his shoe at him.. Defendants used only the force necessary to gain compliance by Removing Plaintiffs restricted items, then immediately left. There was no excessive force or assault and battery as a matter of law.” Defendants’ Brief [Doc.# 39], at 12. Defendants also assert the affirmative defense of qualified immunity. Id. at 14.

A state official is protected by qualified immunity unless the Plaintiff shows (1) that the Defendant violated a constitutional right, and (2) the right was clearly established to the extent that a reasonable person in the Defendant’s position would know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the Supreme Court held that the two-step sequential analysis set forth in Saucier is no longer mandatory.

Rather, Pearson commended the order of inquiry to the judge’s discretion, to be exercised on a case-by-case basis. The first question, then, is which constitutional right governs Plaintiffs excessive force claim. In Aldini v. Johnson, 609 F.3d 858 (6th Cir.2010), the Sixth Circuit clarified the standard that would be applied to excessive force claims brought by individuals who, like the Plaintiff, had been arrested and turned over the jail authorities for booking, but who had not yet appeared before a judge for a probable cause hearing.

For example, an excessive force claim that arises in the context of an arrest or investigative stop of a free citizen is clearly analyzed under the Fourth Amendment’s “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A claim brought by a convicted defendant serving a jail or prison sentence is governed by the Eighth Amendment proscription against cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 318-322, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).

Where neither the Fourth Amendment nor the Eighth Amendment applies, as in the case of a pretrial detainee, the Fourteenth Amendment applies. In Aldini, the Sixth Circuit held that during the time an individual is in custody between his arrest and his appearance before a judge, the Fourth Amendment applies. The Fourth Amendment standard is objective, and is applied without reference to the officer’s subjective motivations. Graham v. Connor, supra. The “ ‘proper application’ of the reasonableness inquiry ‘requires careful attention to the facts and circumstances of each particular case....’” St. John v.

Hickey, 411 F.3d 762, 771 (6th Cir.2005), quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865. The standard “contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.2002). A court must recognize that “officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham at 397, 109 S.Ct. 1865.

However, the facts giving rise to Plaintiffs claims occurred more than a year before Aldini was decided.

The Defendants argue that at that time, it was not clearly established that the Fourth Amendment governed excessive force claims, and that therefore, for purposes of a qualified immunity analysis, the Fourteenth Amendment due process standard should be applied. “A substantially higher hurdle must be surpassed to make a showing of excessive force under the Fourteenth Amendment than under the “objective reasonableness” test of Graham, in which excessive force can be found if the officer’s actions, in light of the totality of the circumstances, were not objectively reasonable.” Darrah v.

City of Oak Park, 255 F.3d 301, 305-306 (6th Cir.2001). To rise to the level of a substantive due process violation, the officers’ conduct must “shock the conscience.” Id.; County of Sacramento v. Lewis, 523 U.S. 833, 846-847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

While substantive due process involves a higher standard, it does not involve no standard, and does not give jail officials free rein to mete out physical punishment at will. “It is clear ... that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham; 490 U.S. at 395, n. 10, 109 S.Ct. 1865. Moreover, “public servants’ reflexive actions ‘shock the conscience’ only if they involved force employed ‘maliciously and sadistically for the very purpose of causing harm’ rather than ‘in a good faith effort to maintain or restore discipline.’ ” Claybrook v.

Birchwell, 199 F.3d 350, 359 (6th Cir.2000) (quoting Lewis, 523 U.S. at 852-53, 118 S.Ct. 1708). To assess whether there is a legitimate and triable question of fact as to whether the Deputies’ conduct in this case violated a clearly established constitutional right, I will apply the Fourteenth Amendment “shocks the conscience” standard. If, viewing the facts in the light most favorable to the Plaintiff, he has made out a due process claim, he has necessarily shown a Fourth Amendment violation as well. Aldini, 609 F.3d at 867. Plaintiffs case rises or falls on the tape. Defendants rely on Scott v.

Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), where a police videotape of a high-speed chase flatly contradicted the plaintiffs claim that the road was mostly empty and that he remained in control of his car. The videotape showed the Plaintiffs car “racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast.” The car swerved around more than a dozen other cars and forced cars travelling in both directions to the shoulder to avoid being hit. Id. at 379-380, 127 S.Ct. 1769.

The Supreme Court stated, “Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort....” Id. Noting that “Respondent’s version of events is so utterly discredited by the record that no reasonable jury could 'have believed him,” the Court held that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Id. at 380, 127 S.Ct. 1769. In such case, the Court held, there is no “genuine” dispute as to the facts. Id. In contrast to the videotape in Scott, the tape in this case does not unambiguously support the Deputies. While it does not necessarily contradict their version of the events, neither is it inconsistent with the Plaintiffs claim that he was beaten without justification. Unlike the situation in Scott, any exculpatory (if that is the word) inferences to be drawn from the tape depend on the whether the trier of fact believes the Deputies.

For example, the Deputies maintain that prior to the physical confrontation, the Plaintiff was aggressive and hostile. Yet the first segment, tape [05], shows the Plaintiff being brought into a processing area without incident. He sits calmly on a bench while two Deputies appear to be preparing paperwork. At one point, he submits to a pat-down search and, apparently in response to the Deputies’ command, he removes his shoes and socks. Later, the shoes and socks are returned to him, and he puts them back on. In the second segment, tape [06], he is then led without incident to the holding cell.

There is no obvious sign of hostility; to the contrary, Plaintiff appears to be nothing but cooperative with the Deputies. Deputy Baylock testified that in the holding cell, he observed the Plaintiff pacing back and forth and engaging in “verbal spats” with other inmates, although he conceded that he could not hear anything. Nevertheless, Baylock said that the Plaintiff was pacing and becoming agitated. The tape [09] shows Plaintiff entering the cell, in which one other prisoner is seated on a small bench, but most of the others are sleeping on the floor.

The Plaintiff does walk back and forth for a short time, and the person who is seated on the bench moves his head, but most of the other prisoners are still sleeping, not engaging in “verbal spats.” At one point, the Plaintiff sits down on the bench next to the other prisoner, and both appear to sit quietly. When the Deputies open the door, the Plaintiff appears to comply with their order to get up and go with them. There is no physical contact between the Plaintiff and the Deputies as they escort him to the safety cell.

At one point, as they walk through the booking area (tape [09]), Plaintiff stops for about four seconds (47:11 to 47:15) and talks with the Deputies, but again, there is no physical contact, and at 47:24, Plaintiff continues on with the Deputies. In tape [01] (showing the hallway outside the safety cell) at 51:42, the Plaintiff enters the safety cell in the company of six Deputies, and two of them leave. At 53:15, a jacket flies out of the door into the hallway, and at 53:27, the door is closed. The action inside the safety cell is shown on tape [10].

The Plaintiff enters the cell at 51:43, and is seen standing by the metal bunk opposite the door. He gestures with his hands; whether his fist is balled, as Deputy Cocking testified, is not clear from the tape, but is a matter of

interpretation. Likewise, the tape is anything but clear as to whether the Plaintiff “glared,” as Deputy Buchanan testified. The Plaintiff walks toward the door, but not necessarily in a hostile or aggressive manner. The Deputies enter, taking the Plaintiff to the ground . aggressively. Two Deputies, including Buchanan, leave. The remaining Deputies are on top of the Plaintiff, and while they clearly remove his jacket, the tape is less clear as to whether they punch or kick the Plaintiff. He appears to be pepper-sprayed at around 53:15.

When the deputies leave at 53:20, the Plaintiff is lying face down on the floor of the cell. He slowly gets up at 53:51, and remains in the cell, in obvious discomfort, going back and forth to the toilet and sink, until around 50 minutes later, when two Deputies come for' him at 141:04. There appears to be blood in the toilet.

Unlike the tape in Scott, which unambiguously showed the plaintiffs version of events to be false, these tapes, viewed in the light most favorable to the Plaintiff, support his claim that the Deputies beat him and assaulted him not in order ,to maintain discipline, but without cause, for the purpose of punishment.

This creates an issue of fact as to both a Fourth and Fourteenth Amendment violation, see Graham, 490 U.S. at 395, n. 10, 109 S.Ct. 1865 and Lewis, 523 U.S. at 852-53, 118 S.Ct. 1708, and at the same time defeats a claim of qualified immunity, since the Fourteenth Amendment protection against gratuitous violence at the hands of state officials was clearly established at the time of this incident. ’ For these reasons, Defendants’ motion for

summary judgment as to the § 1983 excessive force claim should be denied. B. Assault and Battery If there is sufficient evidence of improper use of excessive force to defeat

summary judgment as to the § 1983 claim, there is necessarily sufficient evidence to support the state law claim of assault and battery. Thus,

summary judgment should be denied on the assault and battery claim as to Defendants Baylock and Macey, who were named in the original complaint. Deputies Buchanan and Cocking, however, were originally named as “John Doe” Defendants. They were not specifically identified until Plaintiff filed his amended complaint on February 7, 2012. They argue that the amended complaint does not relate back to the original complaint, and therefore the assault and battery claim is time barred. The statute of limitations for assault and battery is two years. M.C.L. § 600.5805(2).

The alleged assault and battery occurred on March 24, 2009, and the statute of limitations expired on March 24, 2011, the date the original complaint was filed. The amended complaint that identified Buchanan and Cocking for the first time was filed on February 7, 2012, well outside the statute of limitations. Therefore, the claim of assault and battery must be dismissed against them unless the amended complaint relates back to the original complaint. In Cox v.

Treadway, 75 F.3d 230, 240 (6th Cir.1996), the Court held that “[substituting a named defendant for a ‘John Doe’ defendant is considered a change in parties,' not a mere substitution of parties. Therefore, the requirements of Fed. R.Civ.P. 15(

c) must be met in order for the amendment adding the named defendant to relate back to the filing of the original complaint.” Fed.R.Civ.P. 15(

c) provides as follows: (

c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (

A) the law that provides the applicable statute of limitations allows relation back; (

B) the amendment asserts a claim or ' defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original ^pleading; or (

C) the amendment changes the party or the ' naming of the party against whom á claim is asserted, if Rule 15(c)(1)(

B) is satisfied and if, within the period provided by Rule 4(

m) for serving the summons and complaint, the party to be brought in by amendment: (

i) received . such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. Because the amendment in this case changes the naming of a party, Rule 15(c)(1)(

C) is the operative section. Thus, for the amendment to relate back, Plaintiff must show that within 120 days of March 24, 2011 (the filing of the original complaint), Buchanan and Cocking received notice of the action, and knew or should have known that the action would have been brought against them but for the mistake in their identity. The 120 day period from the filing of the complaint expired on July 22, 2011.

In their affidavits (Exhibit B to Defendants’ Reply Brief, Doc. # 47), Buchanan and Cocking state that their first notice that Plaintiff filed a lawsuit was in September of 2011, when they were scheduled to meet with Defendants’ attorney on September 20, 2011. Buchanan and Cocking were both deposed on December 21, 2011. Because these Defendants did not have notice until after the expiration of 120 days from the filing of the complaint, Plaintiff has not satisfied Rule 15(c).

Plaintiff speculates that Buchanan and Cocking must have known about the lawsuit earlier because “[t]he facts and circumstances of Plaintiffs jail beatings could not have been investigated after the initiation of the lawsuit without information from Defendants Buchanan and Cocking.” Plaintiffs Response [Doc. # 44], at 9. This is not necessarily so. The Court did not enter a, scheduling order until August 29, 2011 [Doc. # 14], which was well outside the 120-day period. According to these Defendants’ affidavits, they did not receive a communication to meet with the attorney until September.

Plaintiff may not rely on speculation to defeat a motion for

summary judgment. Clemente v. Vaslo, 679 F.3d 482 (6th Cir.2012), citing Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir.2004). Therefore, Plaintiff has not met his

summary judgment burden on the relation back issue, and the assault and battery count must be dismissed as to Buchanan and Cocking as time barred. C. Intentional Infliction of Emotional Distress To establish a Michigan common law claim of intentional infliction of emotional distress (“IIED”), a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Graham v. Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713 (1999). See also Roberts v. Auto-Owners Insurance Co., 422 Mich. 594, 374 N.W.2d 905 (1985).

Liability under this theory requires that the conduct complained of “has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Graham, 237 Mich.App. at 674, 604 N.W.2d 713. This is a demanding standard: It is not sufficient to show that the defendant acted tortiously, intentionally, or even criminally. Id.

The test has been described as whether “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Roberts, 422 Mich, at 603, 374 N.W.2d 905. As discussed above, there is a question of fact as to whether Defendants Baylock, Macey, Buchanan and Cocking violated Plaintiffs constitutional rights by using excessive force. Accordingly, there are sufficient facts for a jury to find that Sheriffs Deputies administered a severe and unprovoked beating to an intoxicated prisoner.

This could be fairly characterized as outrageous behavior.

Summary judgment should be denied as to the IIED count. D. Conspiracy Plaintiff brings a state law conspiracy claim against all Defendants. However, all of the Defendants are Gene-see County Sheriffs Deputies, and all were acting as such at the time of the alleged incident that occurred at the Genesee County Jail.

Because they were all members of the same legal entity (the Sheriffs Department), the conspiracy claim is barred by the intracorporate conspiracy doctrine, which states as follows: “According to the intracorporate conspiracy doctrine, members of the same legal entity cannot conspire with one another as long as their alleged acts were within the scope of their employment.” Jackson v. City of Columbus, 194 F.3d 737, 753 (6th Cir.1999), overruled, on other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

The intracorporate conspiracy doctrine is applicable to governmental entities. See Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir.1991) (applying doctrine where conspiracy was alleged between school superintendent, executive director of the district, and a school administrator); Jocham v. Tuscola County, 239 F.Supp.2d 714, 732 (E.D.Mich.2003) (stating, in dicta, that doctrine would preclude a conspiracy claim against County Commissioners).

Summary judgment should therefore be granted on the conspiracy claim. E. Claims Against Pickell and Gage Defendant Pickell is the elected Sheriff of Genesee County. He did not personally participate in any of the alleged misconduct on March 24, 2009. Plaintiff alleges that Pickell “knéw or should have known” of the Defendant Deputies’ actions, and that he failed to train or supervise them properly. Amended Complaint, ¶¶ 16(

e) and 17(e). The Supreme Court has specifically held that in a § 1983 action, liability cannot be based on a theory of respondeat superior, or mere supervisory liability. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because Plaintiff has not provided any evidence that Sheriff Pickell impliedly authorized, approved or knowingly acquiesced in the other Deputies’ allegedly unconstitutional conduct, the supervisory claims should be dismissed. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984).

Bellamy held that it must be shown that supervisor “actively participated in or authorized” challenged conduct. Id. Moreover, even being aware of an inmate’s complaint- and failing to take action does not create liability under § 1983. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.1988). In addition, § 1983 liability can be based on a policy of inadequate training or supervision, but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

The Defendants have proffered considerable testimony of the training protocols at the Genesee County Jail, including the month-long training given to new corrections Deputies (Baylock deposition, Def.’s Exh. 2, pp. 7-9), the in-service and refresher training given to all Deputies (Gage deposition, Def.’s Exh. 7, p. 17), and the investigatory, discipline and additional training protocols employed in the context of internal investigations of alleged misconduct (id., pp. 25-27; Buchanan deposition, Def.’s Exh. 3, p. 29; Cocking deposition, Def.’s Exh. 4, p. 22).

Plaintiff, on the other hand, essentially relies on this single incident where the Defendants allegedly breached the Jail’s policies. Again, a claim of failure to train requires a showing of deliberate indifference to the rights of jail inmates. Where, as here, the training regimen itself is adequate, supervisory or municipal liability cannot be premised on a single incident of a deputy violating policy or acting improperly. Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). In Austin v. Redford, Tp.

Police Dept., 859 F.Supp.2d 883, 904-906 (E.D.Mich.2011), the Court explained as follows: “[T]o establish a municipality’s liability on a failure to train theory, plaintiff must show that the allegedly inadequate training amounted to ‘deliberate indifference’ on the part of the Township. ‘A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.’ Connick, 131 S.Ct. at 1360 (quoting Bryan County, 520 U.S. at 409, 117 S.Ct. 1382); see also, City of Oklahoma City v.

Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion) (footnotes omitted) (‘[W]here the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the ‘policy’ and the constitutional deprivation’); id. at 833, 105 S.Ct. 2427 (Brennan, J., concurring in part) (‘[Tjhere may be many ways' of proving the existence of a municipal policy or custom that can cause a deprivation of a constitutional right,. but the scope of § 1983 liability does not permit such liability to be imposed merely on evidence of the wrongful actions of a single city employee not authorized to make city policy.’).” Likewise, Plaintiff has failed to support any claim against Undersheriff Gage, who had no personal involvement in the incident.

Bellamy v. Bradley, supra. F. Official Capacity/Municipal Liability A lawsuit naming a defendant in his or her official capacity is a lawsuit against the public entity that employs that defendant, in this case, the County of Genesee. However, as discussed above, under Monell the County has no respondeat superior liability, even assuming that its officers acted improperly. (“A municipality cannot be held liable solely because it employs, a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”). Id., 436 U.S. at 691, 98 S.Ct. 2018 (emphasis in original).

The Monell Court found that when the acts of individual employees represent the government’s custom or policy, the municipality can be held liable. Id. at 638. In this case, however, Plaintiff has at most shown that the individual Defendants violated policies, not that they acted in accordance with improper policies. In Johnson v.

City of Detroit, 944 F.Supp. 586, 598 (E.D.Mich.1996), the Court explained, “The requirement of an official policy distinguishes the acts of the employee from those of the municipality, ensuring that the municipality is held responsible only for the latter.” In other words, “a municipality cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. ■ Accordingly, Plaintiffs official capacity claims must be dismissed. IY. CONCLUSION For these reasons, I recommend that Defendants’ Motion for

Summary Judgment [Doc. # 39] be GRANTED IN PART AND DENIED IN PART, as follows:

(1) That the motion be DENIED regarding the constitutional claim of excessive force as to Defendants Baylock, Macey, Buchanan and Cocking.

(2) That the motion be DENIED regarding the state law claim of assault and battery as to Defendants Baylock and Macey.

(3) That the motion be DENIED regarding the state law claim of intentional infliction of emotional distress as to Defendants Baylock, Macey, Buchanan and Cocking.

(4) That the motion be GRANTED regarding the assault and battery claim as to Defendants Buchanan and Cocking.

(5) That the motion be GRANTED as to the claim of conspiracy.

(6) That the motion be GRANTED as to all claims against Defendants Piekell and Gage.

(7) That the motion be GRANTED as to all official capacity claims. Any objections to this Report and Recommendation must be filed within fourteen (14) days of service of a copy hereof, including weekends and intervening holidays, as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections, constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary, of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within fourteen (14) days of service of any objecting party’s timely filed objections, including weekends and intervening holidays, the opposing party may file a response.

The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . ' I make no determination at this time whether a Fourteenth Amendment or a Fourth Amendment standard would apply at trial. .

The Sheriffs Investigation Report (Exhibit A to Defendants’ Reply Brief, Doc. # 47), prepared by Lt Pamela Crawford, indicates that the original incident reports written by Deputies Buchanan and Cocking were reviewed, but in no way suggests that Lt. Crawford personally interviewed Buchanan and Cocking.